Madhu T. K. v. State of Kerala & Others (W.A. No.1116 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943** **WA NO. 1116 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 3648/2020 OF HIGH COURT OF KERALA,** ## **ERNAKULAM** ## **APPELLANT/PETITIONER IN W.P.(c):** **MADHU T. K. AGED 48 YEARS S/O. THANKAPPAN, RESIDING AT DEVI DARSHAN, NANGARATHALAMELE, ATHIYANNUR, THIRUPURAM P.O., NEYYATTINKARA. 695 133, THIRUVANANTHAPURAM.** **BY ADVS.** **V.S.BABU GIREESAN** - **K.PREETHA JOHN** - **N.N.SUGUNAPALAN (SR.)** ## **RESPONDENTS/RESPONDENTS 1 TO 3, 7, 11, 13, 14, 16, 17 & 18:** - **1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695001.** - **3 THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695001.** - **4 S. KRISHNANKUTTY, S/O. SANKARAN, THAZHE MULLARATHANATHU VEEDU, ATHIYANNUR VILLAGE, NEYYATTINKARA 695 014, THIRUVANANTHAPURAM.** W.A.No.1116 of 2021 2 - **5 A . MADHAVAN,** - **S/O. ANTHONI,** **MELEVANIKUZHI VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA 695 014, THIRUVANANTHAPURAM.** - **6 T.K. VIJAYAN, S/O. THANKAPPAN, MELE PONGUVILA VEEDU, NANGARATHLA, VENPAKALDESOM, ATHIYANNUR VILLAGE - 605 014, THIRUVANANTHAPURAM.** - **7 THAMARAKSHY,** - **D/O. GOURY,** - **KODIVILAKATHU VEEDU, HAVING NEEROTTUKARAVEEDU, THIRUPURAM DESOM - 695 014, THIRUVANANTHAPURAM.** - **8 R. CHANDRASEKHARAN, S/O. RAGHAVAN, ERUVILAKATHU VEEDU, HAVING NEEROTTUKARAVEEDU , THIRUPURAM DESOM - 695 014, THIRUVANANTHAPURAM.** - **9 SASIDHARAN,** - **AGED 73 YEARS** - **S/O. MRUTHYUNJAYAN, MEKKEKUZHIVALA VEEDU,** - **THIRUPURAM DESOM, NEYYATTINKARA,** **NOW RESIDING AT FLAT NO. 104, JOURNALIST ROAD, NCC NAGAR, PEROORKADA. THIRUVANANTHAPURAM.** - **10 T.K. THANKAPPAN NAIR,** - **S/O. TANU PILLAI, PULIMMOODU VEEDU, THIRUPURAM DESOM, NEYYATTINKARA - 695 014, THIRUVANANTHAPURAM.** W.A.No.1116 of 2021 3 **SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER** **SRI.P.U.SHAILAJAN** **SRI.GOVIND PADMANABHAN FOR R9 & R10** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1116 of 2021 4 ## **JUDGMENT** Dated this the 9[th] day of September, 2021 ## **SHAJI P. CHALY, J.** This appeal is filed by the petitioner in W.P.(C) No.3648 of 2020, challenging the judgment of the learned single Judge dated 11.2.2021. The relief sought for in the writ petition was seeking a writ of mandamus directing the 3[rd] respondent i.e., the Sub Divisional Magistrate, Thiruvananthapuram, to allow Exhibit P7 petition filed by the petitioner and 228 others, apparently under section 145 of the Code of Criminal Procedure, whereby a direction was sought to the 3[rd] respondent to hand over the key of the temple to the public immediately to have possession of the temple by the public as per the judgment in S.A.631/2001 of a learned single Judge of this Court dated 12[th] November, 2019. The contentions contained in the affidavit filed along with the petition is that the appellant herein is the duly elected Secretary in the Kshethra Yogam when the second appeal was pending without finalization from 2001 onwards. Therefore, the appellant and others got themselves impleaded in the appeal as per order in I.A. No.5 of 2019 and later the appeal was allowed, setting aside the judgment and decree of the courts below and W.A.No.1116 of 2021 5 declared the temple as a public trust contrary to the findings to the courts below that it is a private trust of some of the respondents. 2. The case projected by the petitioner in the petition before the Sub Divisional Magistrate is that the key was taken by force with the assistance of the local Police by the respondents under the colour of incorrect judgments but the key is not returned even after the judgment of this Court in second appeal. Accordingly, on the basis of a meeting on 19.1.2019, a unanimous decision was taken to take necessary action to get back the key from the party respondents. It is also pointed out that even after declaring the temple as a public trust, the respondents are not ready to surrender the key to the committee functioning to conduct poojas and to manage the affairs of the temple. Inter alia, among other contentions in that line, it is contended that the imminent and immediate threat to disturb the peace in the locality will cause nuisance in the social life and the sole reason is the illegal act of the party respondents aided by the local Police irrespective of the decision given by the civil court regarding the right to have possession of the temple by the public. It is also submitted that earlier law and order situations emerged and the Sub Divisional Magistrate passed orders restraining the conduct of the festival W.A.No.1116 of 2021 6 and poojas and though the order was challenged before this Court, the order was affirmed considering the law and order situation. This is the sum and substance of the contention contained in the petition filed before the Sub Divisional Magistrate. The learned single Judge, after considering the rival submissions advanced by the petitioner, the party respondents and the State Officials, has arrived at the following conclusions: “10. It is true that this Court has held in Ext.P5 judgment, that the temple in question has attained the character of a public trust and the plaintiffs in the O.S. cannot seek a claim for exclusive administration of the temple. Therefore there is no doubt that the plaintiffs in the suit cannot claim a right over the administration. But the issue involved in this writ petition is, which is the administrative body entitled to administrate the temple. The petitioner would submit that it is 'Iruvaikkonam Kshethra Yogam Committee' of which the petitioner is the Secretary since 2017, which is entitled to administer committee. On the other hand, the counsel for the 13[th] respondent would submit that 'Iruvaikkonam Bhagavathy Kshethra Yogam Trust' of which the 13[th] respondent is the Secretary, is entitled to administer the temple. W.A.No.1116 of 2021 7 11. This is a disputed question of fact which this Court cannot go into and decide in exercise of the powers under Article 226 of the Constitution of India. If the petitioner and the 13[th] respondent have any dispute regarding the authority of a committee to administer the temple, it is open to them to resort to appropriate civil proceedings. 12. The learned counsel for the 13[th] respondent would submit that Ext.R13(a) is the trust deed, the validity of which has been upheld in Ext.P5 judgment. Therefore the selection of the committee should be governed by Ext.R13(b). This Court does not deem it appropriate to enter into any finding in that regard in this writ petition. 13. The contention of the learned counsel for the petitioner is that the Sub Divisional Magistrate has ample power under Section 145 of the Criminal Procedure Code to interfere in the matter and give appropriate directions to hand over the administration of the temple to the petitioner, especially when there is likelihood of law and order problem in the area relating to the administration of the temple and conduct of festivals. 14. However, I find that invoking the power under Article 226 of the Constitution of India, this Court cannot direct the Sub Divisional Magistrate to put any party to the dispute into possession of any property. This view is supported by the judgment of the Hon'ble Apex W.A.No.1116 of 2021 8 Court reported in **Bhinka & Others v. Charan Singh** [AIR 1959 SC 960]. In the circumstances, this Court cannot direct the Sub Divisional Magistrate to consider Ext.P5 representation (Actually Ext P7) in which the prayer of the petitioner is to hand over the keys of the temple. 15. The learned Government Pleader on the basis of the report received from the Station House Officer and the Sub Divisional Magistrate would submit that there is likelihood of law and order issues relating to the temple activities and the State should be permitted to deal with such situation. The State Government can indeed exercise its executive powers in case there are law and order problems and State will be at liberty to take such action as is permissible under law. Parties to the writ petition will be at liberty to bring to the notice of the State if there is likelihood of such law and order problem. In the circumstances, no relief can be granted to the petitioner in this writ petition. The writ petition therefore stands disposed of with the above observations.” 3. The paramount contention advanced in the appeal is that on the basis of the decree passed by the court below, the Police managed to recommend proceedings under sections 144 and 145 of Cr.P.C. against W.A.No.1116 of 2021 9 the office bearers of the temple committee and accordingly the key of the temple was managed to be collected by the party respondents. However, the appellant, being the elected Secretary and others, filed an impleading petition and on the basis of the arguments advanced, the judgments and decree passed by the trial court and the appellate court were reversed. According to the appellant, when the statutory authority under section 145 of Cr.P.C. is vested with the jurisdiction to consider and pass orders on Exhibit P7 petition, the learned single Judge ought to have directed the Sub Divisional Magistrate to consider Exhibit P7 in accordance with law by which the law and order situation should have been remedied. It is also submitted that the main purpose of section 145 Cr.P.C. is for identifying any emergency situation and to exercise the discretion to protect the interest of the society and further that the object of the provision is to provide a speedy proceeding to bring the parties before the Sub Divisional Magistrate and ascertain as to the person/persons entitled to secure possession of the key and thereby, implement the findings in Exhibit P5 judgment rendered by this Court in the Second Appeal. Similar contentions are also raised apart from contending that, if directions are not issued to consider Exhibit P7 W.A.No.1116 of 2021 10 petition by the Sub Divisional Magistrate, the parties would be again dragged into civil litigations and thereby, suffer irreparable injuries and untold miseries. The learned counsel appearing for the party respondents on the other hand submitted that the second appeal was preferred by some of the party respondents or their predecessors-in-interest and therefore, the contention advanced by the appellant that the appellant and others were instrumental in reversing the judgments and decrees of the courts below, is not correct. It is also pointed out that Exhibit P7 petition on a bare reading makes it clear that the appellant and others have raised only civil disputes by and between the parties, which cannot be adjudicated by the Sub Divisional Magistrate, exercising the powers conferred under section 145 Cr.P.C. 4. We have heard learned Senior Counsel for the appellant Sri.N.N.Sugunapalan, assisted by Adv.V.S.Babu Gireesan, learned counsel for the party respondents Shri.P.U.Shailajan and Sri.Govind Padmanaban and learned Senior Government Pleader Sri.K.P.Harish and perused the pleadings and materials on record. 5. Learned Senior Counsel for the appellant has addressed arguments in accordance with the submissions discussed above, W.A.No.1116 of 2021 11 however, learned counsel for the party respondents as well as learned Senior Government Pleader supported the judgment of the learned single Judge, basically contending that going by the pleadings put forth in Exhibit P7 petition, there is no power vested with the Sub Divisional Magistrate to decide the dispute since they are absolutely civil in nature. 6. We have evaluated the rival submissions made across the Bar taking into account the documents produced by the appellant. It is an admitted fact that as per the judgment in second appeal, the judgments and decrees of the courts below were set aside and declared that the temple in question is managed by a section of people representing the deity and thereby acquired the character of a public temple under the authority of the public, a section of people, represented through its committee and the President. 7. The sole question emerging for consideration is whether Exhibit P7 petition can be treated as one under section 145 Cr.P.C. enabling the Sub Divisional Magistrate to consider the same so as to grant the relief sought for to hand over the key of the temple ? On going through the petition, it is clear that none of the ingredients contained under section 145 Cr.P.C. are spelt out in the petition, thus empowering the Sub W.A.No.1116 of 2021 12 Divisional Magistrate to exercise the authority vested in him. In order to have a proper evaluation of section 145 Cr.P.C., it is extracted hereunder: ## **“145. Procedure where dispute concerning land or water is likely to cause breach of peace.** (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression" land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute, (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order W.A.No.1116 of 2021 13 made by him under sub- section (1), in possession of the subject of dispute: PROVIDED that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1). (5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final. - (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed. - (b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3) - (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and W.A.No.1116 of 2021 14 if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. - (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.” 8. On a reading of sub-section (1) of Section 145 Cr.P.C., it is clear that in order to exercise the power thereunder, the Executive Magistrate should be satisfied from a report of a Police Officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction. From the pleadings in Exhibit P7 petition, no such eventualities is discernible, even though a statement is made that earlier there were law and order situations. That apart it is significant to note W.A.No.1116 of 2021 15 that the relief sought for in the petition is to hand over the key of the temple to the appellant and the public. Therefore, there is no assertion made at all by the appellant and others that interference of the Sub Divisional Magistrate is required in order to maintain law and order situation in the temple in question. It is clear from Exhibit P5 judgment that on the basis of a decree drawn in accordance with the judgment, the decree is to be executed through a competent jurisdictional court. The attempt of the appellant can only be viewed as a shortcut method to secure possession of the key of the temple. When the civil rights of the parties were declared by the learned single Judge of this Court in the second appeal, necessarily the decree drawn accordingly has to be executed through the process contemplated under Order XXI of the Code of Civil Procedure. 9. Even though learned senior counsel for the appellant submitted that yet another long drawn civil litigation has to be undertaken by the parties, if the Sub Divisional Magistrate is not directed to consider Exhibit P7 petition, we are unable to agree with the said proposition mooted by the learned Senior Counsel, for the basic reason that such an eventuality is taken care of under section 47 of the Code of Civil Procedure, and sub- W.A.No.1116 of 2021 16 section (1) thereto stipulates that all questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. There is no dispute that the appellant as well as others, who got themselves impleaded in the second appeal, and the party respondents, or the legal heirs, are parties to the second appeal, in which a judgment and decree was passed by this Court reversing the Judgments of courts below. So also learned counsel has made submissions on the basis of section 146 Cr.P.C., however, we are of the considered and definite opinion that section 146 Cr.P.C. is basically dependent on the orders passed under sub-section (1) of section 145 Cr.P.C. That apart it is clear and convincing that there is no dispute with respect to the possession of the temple property in question, but the dispute apparently is only with respect to the persons entitled to get the key of the temple. In fact the dispute as to the possession of the temple property was decided by this Court in Exhibit P5 judgment, which has become final and conclusive and therefore, there is no force in the contention so advanced by the learned senior counsel for the appellant. W.A.No.1116 of 2021 17 To put it short, if we issue directions to the sub divisional magistrate to decide a civil dispute in the guise of powers conferred under section 145 Cr.P.C for dealing with law and order situation, we would be setting a wrong precedent and in effect it would be nothing but asking the said authority to usurp the powers of a civil court. 10. Taking into account all the above legal and factual circumstances, undoubtedly we are of the opinion that the learned single Judge was right in dismissing the writ petition. The appellant has not made out any case of illegality or other legal infirmities, justifying our interference in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958. Needless to say, appeal fails, accordingly it is dismissed. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY** **JUDGE.** **smv**